Exhibit 10.21
LEASE AGREEMENT
THIS LEASE (this "Lease") is made on July 3, 2003, by and between
STANWOOD LIMITED PARTNERSHIP, a Georgia limited partnership, first party,
hereinafter referred to as "Landlord", and HUGHES SUPPLY, INC., a Florida
corporation, second party, hereinafter referred to as "Tenant" who covenant and
agree as follows:
1. Premises. Landlord, for and in consideration of the rents, covenants,
agreements, and stipulations hereinafter mentioned, reserved and contained, to
be paid, kept and performed by Tenant, has leased and rented, and by these
presents does lease and rent, unto said Tenant, and said Tenant hereby agrees to
lease and take upon the terms and conditions which hereinafter appear, the
following described property (hereinafter called "Premises") and personal
property as hereinafter set forth. The Premises consists of real property and
improvements located at 2751 Miller Road, Decatur, Georgia, including, without
limitation, an approximately 50,000 square foot building on approximately 5.978
acres, all as set forth in Exhibit "A" attached hereto and made a part hereof.
2. Term. Tenant shall have and hold the Premises for a term of ten (10)
years, said term to begin on the earlier of (a) August 1, 2003; or (b) that date
on which Tenant takes occupancy of the Premises (the "Commencement Date"), and
to end on July 31, 2013. Provided it is not then in default under the Lease,
Tenant may extend the term up to four (4) times for five (5) year(s) per
extension by written notice of its election to do so given to Landlord at least
ninety (90) days prior to the then-current expiration date. The extended term
will be on all of the terms and conditions of this Lease.
3. Rental. For the first year of the Lease, Tenant will pay a yearly
rental of $224,000.00. The yearly rental will be due and payable in equal
monthly installments of $18,666.67 in advance on the 1st day of each and every
calendar month during the term of this Lease and any renewal thereof. The first
payment of such yearly rental is to be made on the Commencement Date. All rental
due and payable under this Lease shall be made payable to: Stanwood Limited
Partnership and delivered to the following address: 8314 Forest Gate Boulevard,
Sugar Land, Texas 77479 or such other address as Landlord may designate in
writing to Tenant from time to time. For questions regarding payment of rental
under this Lease, Tenant may call: Mike Stanwood at the following phone number:
713-943-3790.
During each lease year commencing August 1, 2004, Tenant covenants and agrees to
pay to Landlord as annual base rental an amount equal to the product obtained by
multiplying the annual base rental for the first lease year (the "Base Rent") by
a fraction, the numerator of which will be the CPI-U, as that term is defined
below, for the eleventh month of the immediately prior lease year, and the
denominator of which will be the CPI-U for July, 2003. In no event, however,
will the increase for any one year exceed three percent (3%) over the rent paid
for the immediately preceding year. The annual base rental computed in
accordance with this Paragraph will be paid in equal installments in advance on
the first day of each calendar month of the applicable lease year.
The CPI-U will mean the "Consumer Price Index-Seasonally Adjusted U.S. City
Average For
All Items For All Urban Consumers, (1982-84=100)," published monthly in the
"Monthly Labor Review" of the Bureau of Labor Statistics of the United States
Department of Labor. If the CPI-U is discontinued, the "Consumer Price
Index-Seasonally Adjusted U.S. City Average For All Items For Urban Wage Earners
and Clerical Workers (1982-84=100)," published monthly in the "Monthly Labor
Review" of the Bureau of Labor Statistics of the United States Department of
Labor (the "CPI-W"), will be used for making the computation set forth above. If
the CPI-W is discontinued, comparable statistics on the purchasing power of the
consumer dollar published by the Bureau of Labor Statistics of the United States
Department of Labor will be used for making the computation set forth above. If
the Bureau of Labor Statistics will no longer maintain statistics on the
purchasing power of the consumer dollar, comparable statistics published by a
responsible financial periodical or recognized authority agreeable to the
parties will be used for making the computation set forth above. If the base
year "(1982-84=100)" or other base year used in computing the CPI-U is changed,
the figures used in making the computation above will be changed accordingly, so
that all increases in such price index are taken into account notwithstanding
any such change in the base year.
4. Utility Bills. Tenant will pay all utility bills of all types,
including, but not limited to, water and sewer, natural gas, electricity and
sanitary pick up bills for the Premises, or used by Tenant in connection
therewith. If Tenant does not pay same, Landlord may pay the same, and such
payment will be added to the rental of the Premises.
5. Taxes. Tenant will pay all real property taxes which may be assessed by
any lawful authority against the Premises. Landlord will be responsible for
payment of all special assessments imposed upon the Premises. Tenant will pay
any and all ad valorem taxes assessed against the personal property located on
the Premises, during the entire term thereof, except for the tax year in which
this Lease commences. Tenant shall have the right, at Tenant's sole expense, to
appeal any and all taxes applicable to the Premises and Landlord agrees that
Landlord will cooperate with Tenant reasonably and sign all documents reasonably
required in connection with any such appeal. Tenant may delay payment of any
portion of such taxes which are the subject of an appeal until the resolution of
such appeal, in which event Tenant shall be solely responsible for the payment
of any penalties, interest, or additional taxes which result from such delay.
Notwithstanding the foregoing, Tenant shall not permit the filing of a tax lien
against the Premises. Landlord represents that the taxing authority(ies) for the
Premises are as follows: Dekalb County, Georgia, true, correct and complete
copies of all of the most recent bills relating to real property taxes due and
payable on the Premises are attached as Exhibit "B" to this Lease, and the tax
parcel identification number(s) for the Premises are as follows:16 024 01 013.
Landlord shall pay all sales, excise or other taxes due and payable on the rents
paid by Tenant hereunder.
6. Insurance. Tenant shall carry, at Tenant's sole cost and expense and
throughout the term of this Lease and all renewals and extensions thereof: (a)
"All Risk" insurance coverage on the demised Premises in an amount not less than
the full insurable value (the term "full insurable value" will mean the actual
replacement cost, excluding foundation and excavation costs, as reasonably
determined by Landlord; Landlord represents that the current estimated
replacement cost of all buildings and related improvements contained within the
Premises is $2,000,000.00 and the current estimated value of the land, not
including any improvements, contained within
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the Premises is $(400,000.00); (b) insurance coverage on all equipment, fixtures
and appliances owned by Tenant; and (c) comprehensive general liability
insurance coverage with respect to the Premises in an amount not less than
$1,000,000.00 per occurrence and $5,000,000.00 in the aggregate.
Tenant shall name Landlord as an additional insured under all insurance policies
required to be maintained hereunder and furnish evidence of such coverages and
additional insured status in the form of certificates of insurance to Landlord
prior to the commencement of the term of this Lease and at least fifteen (15)
days prior to the earlier of the commencement of each year of the term of this
Lease or the date upon which such insurance coverage would otherwise lapse if
not renewed. All insurance provided for in this Lease will be effected under
enforceable policies issued by insurers of recognized responsibility licensed to
do business in the state in which the Premises are located. If Tenant provides
any insurance required by this Lease in the form of a blanket policy, Tenant
shall furnish satisfactory proof that such blanket policy complies in all
respects with the provisions of this Lease and that the coverage thereunder is
at least equal to the coverage which would be provided under a separate policy
covering only the Premises.
If Landlord so requires, the policies of insurance provided for will be payable
to the holder of any mortgage, as the interest of such holder may appear,
pursuant to a standard mortgagee clause. All such policies will, to the extent
obtainable, provide that any loss will be payable to Landlord or to the holder
of any mortgage notwithstanding any act or negligence of Tenant which might
otherwise result in forfeiture of such insurance. All such policies will, to the
extent obtainable, contain an agreement by the insurers that such policies will
not be canceled without at least thirty (30) days prior written notice to
Landlord and to the holder of any mortgage to whom loss hereunder may be
payable.
7. Maintenance and Repairs by Tenant. Landlord warrants as of the
commencement date of this Lease that the Premises are structurally sound and
that all electrical, lighting, utility, fire safety, HVAC, and all operating
systems are in good working condition and are not in need of repair. In
addition, Landlord warrants and shall be responsible for any and all HVAC
repairs (unless caused by Tenant's negligence) which may arise during the first
year of the Lease term. Except as set forth in Paragraph 8, Tenant will, at its
own expense, keep and maintain the interior of the Premises, including floor
coverings, exterior doors, windows and all systems pertaining to electrical,
HVAC, and lighting. Tenant will also perform exterior lawn and landscaping
maintenance. It is the intent of the parties that Tenant will only be required
to make repairs or replacements which are not structural in nature.
8. Repairs by Landlord. Landlord agrees to maintain and keep in good
repair the roof, exterior walls, structural supports (including foundations),
sewer/septic systems, and all water or sewer pipes located underground or in the
slab, sidewalks, parking lots, driveways and other vehicular access and
maneuvering areas. Landlord will also be responsible for any repairs or
replacements which are structural in nature, which are extraordinary or capital
in nature, which will increase the value of the Premises subsequent to the end
of the then term, and any other repairs not expressly delegated to Tenant in
this Lease. Landlord will also promptly clean up and dispose of any Hazardous
Materials found on, in or under any portion of the Premises, remediate the
Premises to comply with any and all environmental laws applicable thereto, and
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pay for all clean up and disposal costs at no cost to Tenant, unless directly
caused by Tenant, its employees, agents or contractors. Notwithstanding anything
to the contrary set forth elsewhere in this Lease, in the event the installation
of sprinkler and fire protection systems on the Premises is required by
applicable law, ordinances, regulations or governmental requirements for
Tenant's current or future use of the Premises at any time during the term of
this Lease or any renewals thereof, Landlord, at Landlord's sole expense and
without materially interfering with Tenant's operations on the Premises, shall
immediately install on the Premises, and subsequently maintain, repair, modify
and replace as necessary to comply with applicable law, ordinances, regulations
and governmental requirements, all such required sprinkler and fire protection
systems.
9. Destruction of or Damage to the Premises. If the Premises are totally
destroyed by storm, fire, lightning, earthquake or other casualty, this Lease
will terminate as of the date of such destruction, and rental will be accounted
for as between Landlord and Tenant as of that date. If the Premises are damaged
but not wholly destroyed by any of such casualties, rental will abate in such
proportion as use of the Premises has been destroyed, and Landlord will restore
the Premises to substantially the same condition as before the damage as
speedily as practicable, whereupon full rental will recommence; however, if the
damage will be so extensive the same cannot be reasonably repaired and restored
within three (3) months' time from the date of the casualty, then either
Landlord or Tenant may cancel this Lease by giving written notice to the other
party within thirty (30) days from the date of such casualty. In such event,
rental will be apportioned and paid up to the date of such casualty.
10. Modifications and Alterations to the Premises. No modifications,
alterations, or improvements to the building or openings cut through the roof
are allowed without the prior written consent of Landlord, which consent will
not be unreasonably withheld, conditioned or delayed. Notwithstanding the
foregoing, Landlord acknowledges that Tenant has the right, but not the
obligation, to make improvements to the outside storage areas, including,
without limitation, paving, laying crushed stone (or similar materials) and
fencing, and Landlord hereby consents to same.
11. Removal of Fixtures. Tenant may (if not in default hereunder) prior to
the expiration of this Lease, or any extension thereof, remove all personal
property, fixtures and equipment which Tenant has placed in the Premises,
provided that during such removal Tenant will make all reasonable repairs
necessary to return the Premises to its original condition, reasonable wear and
tear excepted.
12. Return of the Premises. Tenant agrees to return the Premises to
Landlord at the expiration or prior termination of this Lease in good condition
and repair, reasonable wear and tear, damage by storm, fire, lightning,
earthquake or other casualty alone excepted.
13. Condemnation. If the whole of the Premises, or such portion thereof as
will make the Premises unusable for the purpose herein leased, be condemned by
any legally constituted authority for any public use or purpose or if Landlord
sells the Premises under threat of condemnation, then in either of said events
the term hereby granted will cease from the time when possession thereof is
taken by public authorities, and rental will be accounted for as
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between Landlord and Tenant as of that date. Such termination, however, will be
without prejudice to the rights of either Landlord or Tenant to recover
compensation and damage caused by condemnation from the condemnor. It is further
understood and agreed that neither Tenant nor Landlord will have any rights in
any award made to the other by any condemnation authority.
If there is a partial taking and if it is not so extensive as to render the
remaining portion (after restorations) unsuitable for the business of Tenant,
then this Lease will continue in effect and Landlord, upon receipt of the award
in condemnation, will expeditiously commence and complete all necessary repairs
and restorations to the Premises so as to constitute the portion of the building
not taken a complete architectural unit and restore the Premises as nearly as
practicable to its prior condition; provided, however, that such work does not
exceed the scope of the original construction, and Landlord will not be under
any duty to expend amounts in excess of the award received by Landlord. Rent,
taxes and other charges payable by Tenant will equitably abate while Landlord's
repairs and restorations are in process. If a partial taking consists only of a
street widening or utility easement which, at Tenant's sole discretion, is
determined not to materially affect Tenant's use of the Premises, this Lease
will continue in full force and effect without abatement of rent, taxes or other
charges.
14. Compliance with Laws, Etc. Tenant agrees, at its own expense and
solely in relation to those portions of the Premises which Tenant is required to
maintain or repair under Paragraph 7, to promptly comply with all requirements
of any legally constituted public authority made necessary by reason of Tenant's
specific use of said Premises. Notwithstanding the foregoing, the Tenant will
not be liable for: (a) repairs, alterations, replacements or retrofitting
required by the accessibility or path of travel requirements set forth in Title
III of the Americans With Disabilities Act of 1990, 42 USC ss.12101, et seq. and
regulations and guidelines promulgated thereunder, as amended from time to time
(collectively, the "ADA"); (b) removal or abatement of asbestos containing
materials or suspect asbestos containing materials; (c) repairs, alterations or
replacements required to comply with federal, state or local indoor air quality
laws, rules or regulations; (d) repairs or replacements incident to CFC
conversions for heating and cooling systems; (e) installation, modification or
upgrade of fire protection and sprinkler systems; or (f) repairs, alterations or
replacements described in Paragraph 8. Landlord agrees to promptly comply with
any other governmental or regulatory requirements if not made necessary by
reason of Tenant's occupancy of the Premises or relating to those portions of
the Premises which Landlord is required to maintain or repair under Paragraph 8.
Notwithstanding anything to the contrary contained elsewhere in this Lease,
Tenant shall not under any circumstances be responsible for curing or liable for
any costs associated with any aspect of the Premises which was not, at the time
Tenant first takes possession of the Premises pursuant to this Lease, in
compliance with all applicable laws, rules, regulations, ordinances, codes,
permits, approvals, guidelines, conditions, restrictive covenants, mandates,
moratoria, development criteria, consent decrees, orders, judgments, decisions,
determinations and the like affecting the Premises (collectively, the
"Pre-existing Non-compliance Problems"). Landlord shall be solely responsible
for immediately curing all Pre-existing Non-compliance Problems at Landlord's
sole expense and shall be liable for all costs relating directly or indirectly
to such Pre-existing Non-Compliance Problems.
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15. Assignment. Except as set forth below, Tenant may not assign this
Lease, or any interest thereunder, or sublet the Premises in whole or in part
without prior written notice to Landlord of its intent to assign or sublease.
Tenant may (a) sublet all or part of the Premises to any corporation, the
majority of whose shares are owned by Tenant, during the period of such majority
ownership only or (b) assign this Lease to any corporation which owns more than
fifty percent (50%) of Tenant's issued and outstanding shares, or which succeeds
to the entire business of Tenant through purchase, merger, consolidation or
reorganization, or to any affiliate sharing common majority ownership with the
Tenant. Subtenants or assignees will become liable directly to Landlord for all
obligations of Tenant hereunder, without relieving Tenant's liability.
16. Mortgagee's Rights. Tenant's rights will be subject to any bona fide
mortgage or deed to secure debt which is now, or may hereafter be, placed upon
the Premises by Landlord, and Tenant agrees, at Landlord's cost, to execute and
deliver such documentation as may be reasonably required by any such mortgagee
to effect any subordination. Provided, however, as a condition to such
subordination, Landlord must secure from each mortgagee a nondisturbance
agreement acceptable to Tenant providing that in the event of a foreclosure the
mortgagee will recognize the validity of this Lease and, provided that Tenant is
not in default, will not disturb Tenant's possession or its rights under this
Lease.
17. Use of the Premises. The Tenant may use the Premises for warehouse,
sales and office purposes and for any other lawful purpose. Tenant shall also
have the exclusive right to use the existing machinery currently located in the
Premises. The Premises will not be used for any illegal purposes, nor in any
manner to create any nuisance or trespass; nor in any manner to vitiate the
insurance, based on the above purposes for which the Premises are leased.
18. Signs. Tenant will have the right to erect at Tenant's sole expense
signage at the entrance to and upon the Premises, including but not limited to a
customary trade sign identifying the business of Tenant. The erection of signage
by Tenant will be subject to and in conformity with all applicable laws, zoning
ordinances and building restrictions or covenants of record. On or before
termination of this Lease, Tenant will remove the signage thus erected, and will
repair any damage or disfigurement, caused by such removal. All signage proposed
by Tenant shall be subject to Landlord's review and approval, which approval
shall not be unreasonably withheld, conditioned or delayed.
19. Entry for Carding, etc. Landlord may card the Premises "For Rent" or
"For Sale" ninety (90) days before the termination of this Lease. Landlord may
enter the Premises at reasonable hours during the term of this Lease to exhibit
the same to prospective purchasers and to make repairs required of Landlord
under the terms hereof.
20. Indemnity. Landlord agrees to indemnify and save harmless Tenant and
its parents, subsidiaries, affiliates, directors, officers, employees, agents,
servants, attorneys and representatives from any and all claims, causes of
action, damages, fines, judgments, penalties, costs (including environmental
clean-up costs and response costs), liabilities, expenses or losses (including
without limitation, reasonable attorneys' fees and expenses of litigation)
arising during or after the Lease term: (a) as a result of any violation by
Landlord or prior owners or occupants of the Premises of any applicable federal,
state or local environmental laws or
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regulations, as now or hereinafter in effect, regulating, relating to or
imposing liability or imposing standards of conduct concerning any Hazardous
Materials; or (b) as a result of the presence, disturbance, discharge, release,
removal or cleanup of Hazardous Materials or as a result of environmental
contamination or other similar conditions which existed prior to commencement of
the Lease term; or (c) as a result of any violation of the accessibility or path
of travel requirements imposed by the ADA; or (d) as a result of any of
Landlord's representations and warranties being untrue. These indemnities will
survive the expiration, cancellation or termination of the Lease.
Tenant agrees to indemnify and save harmless Landlord and its parents,
subsidiaries, affiliates, directors, officers, employees, agents, servants,
attorneys and representatives from any and all claims, causes of action,
damages, fines, judgments, penalties, costs (including environmental clean-up
costs and response costs), liabilities, expenses or losses (including without
limitation, reasonable attorneys' fees and expenses of litigation) arising
during or after the Term: (a) as a result of any violation by Tenant of any
applicable federal, state or local environmental laws or regulations, as now or
hereinafter in effect, regulating, relating to or imposing liability or imposing
standards of conduct concerning any Hazardous Materials; or (b) as a result of
the presence, disturbance, discharge, release, removal or cleanup of Hazardous
Materials or as a result of environmental contamination or other similar
conditions which existed after commencement of the Term and which was caused by
or brought onto the Premises by Tenant or Tenant's agents, contractors,
employees, licensees and invitees; or (c) as a result of any violation by Tenant
of the accessibility or path of travel requirements imposed by the ADA; or (d)
as a result of any of Tenant's representations and warranties being untrue.
These indemnities will survive the expiration, cancellation or termination of
the Lease; provided, however, that Tenant will not be liable for the acts of any
other tenants of said property.
21. Default of Tenant. It is mutually agreed that in the event: (a) the
rent herein reserved is not paid at the time and place when and where due and
Tenant fails to pay said rent within five (5) days after written demand from
Landlord; or (b) Tenant will fail to comply with any material term, provision,
condition, or covenant of this Lease, other than the payment of rent, and will
not cure such failure within thirty (30) days after notice to Tenant of such
failure to comply or such additional time period as may reasonably be necessary
to effect a cure of the default provided that Tenant commences and diligently
pursues a cure of the default; or (c) Tenant causes any lien to be placed
against the Premises and does not cure the same within thirty (30) days after
notice from Landlord to Tenant demanding cure, THEN in any of such events,
Landlord will have the option to do any of the following, in addition to, and
not in limitation of any other remedy permitted by law or by this Lease: (i)
Landlord may terminate this Lease, in which event Tenant will immediately
surrender the Premises to Landlord. Tenant agrees to indemnify Landlord for all
loss and damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Premises, or through decrease in rent, or
otherwise; or (ii) Landlord, as Tenant's agent, without terminating this Lease,
may terminate Tenant's right of possession, and, at Landlord's option, enter
upon and rent the Premises at the best price obtainable by reasonable effort,
without advertisement and by private negotiations and for any term Landlord
deems proper. Tenant will be liable to Landlord for the deficiency, if any,
between Tenant's rent hereunder and the price obtained by Landlord on reletting.
Pursuit of any of the foregoing remedies will not preclude pursuit of any of the
other remedies herein provided or any other
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remedies provided by law. In any case, Landlord will use best efforts to
mitigate Tenant's damages. Any notice in this provision may be given by Landlord
or its attorney. No termination of this Lease prior to the normal ending
thereof, by lapse of time otherwise, will affect Landlord's right to collect
rent for the period prior to the termination thereof.
22. Default of Landlord. Should Landlord fail to perform any of its
obligations hereunder, Landlord will have a period of thirty (30) days after its
receipt of written notice from Tenant of a failure of performance within which
to commence a cure of that failure. Failure of Landlord to commence that cure
within the 30-day period or to effect that cure within that 30-day period will
be an event of default under this Lease and Tenant may, at its option, elect to:
(a) terminate this Lease upon thirty (30) days written notice to Landlord; (b)
bring an action to require specific performance of Landlord's obligations; (c)
provide Landlord with an additional period of time within which to effect that
cure; (d) commence such cure itself, and Tenant may either, at its option,
offset any expenses it incurs in effecting such cure against the rent and other
charges due and payable by Tenant hereunder, or require that Landlord
immediately reimburse Tenant for its expenses; provided, however, in the event
of an emergency, Tenant may immediately effect a cure of Landlord's failure
should Landlord fail to act immediately to do so, without the requirement of any
notice by Tenant to Landlord; and/or (e) pursue any other remedies provided
herein or provided by law.
23. Warranties. Landlord warrants that Landlord owns the Premises in fee
simple and has the right to enter into this Lease; that the Premises are free
from liens and encumbrances except for utility easements and un-violated
restrictive covenants which do not materially adversely affect Tenant's intended
use of the Premises; that the Premises has legal, direct, pedestrian and
vehicular access to and from and abuts one or more publicly dedicated roads;
that the Premises are in compliance with all applicable laws, regulations and
ordinances; to the best of Landlord's knowledge, that past and current uses of
the Premises comply with federal, state and local environmental laws and
regulations; that Landlord has not received a citation from any regulatory
agency for noncompliance with environmental laws; that, other than the following
matters: NONE, Landlord has no knowledge of the presence of fuel storage tanks
or of hazardous, toxic, dangerous, or carcinogenic materials, substances or
contaminants, formaldehyde, polychlorinated biphenyls, lead, lead dust,
asbestos, asbestos containing materials, oil, gasoline, other petroleum products
or byproducts, radon or other similar materials or substances (collectively,
"Hazardous Materials") on, in or under the Premises and has no knowledge of any
contamination present on, in or under the Premises; and covenants that Tenant,
provided it performs all of its obligations under this Lease, will peaceably and
quietly enjoy the Premises during the Lease term without any disturbance from
Landlord, anyone claiming by, through or under Landlord, or any other party,
except as otherwise specifically provided in this Lease.
24. Holding Over. If Tenant remains in possession of the Premises after
expiration of the term hereof, with Landlord's acquiescence and without any
express agreement of the parties, Tenant will be a tenant-at-will at the rental
rate in effect at end of the Lease; and there will be no renewal of this Lease
by operation of law.
25. Notices. Any notice given pursuant to this Lease will be in writing
and sent by
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certified mail to:
(a) Landlord: Stanwood Limited Partnership
8314 Forest Gate Boulevard
Sugar Land, Texas 77479
Attention: Mike Stanwood
Phone No.:713-943-3790 / Fax No.: 713-948-5632
or to such other address as Landlord may hereafter designate in writing to
Tenant.
(b) Tenant: Hughes Supply, Inc.
20 North Orange Avenue, Suite 200
Orlando, Florida 32801
Attention: Mark Scimeca, Esquire,
Associate General Counsel
Phone No.: (407) 841-4755 / Fax No.: (407) 649-3018
or to such other address as Tenant may hereafter designate in writing to
Landlord.
26. Construction of Lease Terms. The terms of this Lease will not be
construed more strongly against any party, regardless of which party was
responsible for the preparation and drafting of this Lease.
27. Attorneys and Other Professional Fees. In any litigation between the
parties regarding this Lease, the losing party agrees to pay to the prevailing
party its reasonable attorneys', paralegals', accountants', consultants', and
experts' fees and expenses of litigation at all trial, appellate and alternative
dispute resolution levels and forums. For purposes of this paragraph, a party is
to be considered the prevailing party if:
(a) it initiated the litigation and obtains (by judgment or agreement)
substantially the relief sought; or
(b) it did not initiate the litigation and the other party does not
obtain (by judgment or agreement) substantially the relief sought.
28. Waiver of Rights. No failure of Landlord to exercise any power given
Landlord hereunder, or to insist upon strict compliance by Tenant with its
obligations hereunder, and no custom or practice of the parties at variance with
the terms hereof will constitute a waiver of Landlord's right to demand exact
compliance with the terms hereof.
29. Rights Cumulative. All rights, powers and privileges conferred
hereunder upon the parties hereto will be cumulative but not restrictive to
those given by law.
30. Time of Essence. Time is of the essence of this Agreement.
31. Environmental Site Assessment. Tenant will have the right, at its
expense, to undertake a Phase I Environmental Site Assessment or equivalent (the
"Environmental Report")
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with respect to the Premises. In the event that the results of such
Environmental Report are unsatisfactory to Tenant, in its sole discretion, then
Tenant will have the right, at any time within forty-five (45) days after
commencement of the term of this Lease to terminate this Lease immediately upon
written notice to Landlord.
32. Definitions. "Landlord" as used in this Lease will include first
party, its heirs, representatives, assigns, and successors in title to the
Premises. "Tenant" will include second party, its heirs and representatives,
assigns and successors, and if this Lease will be validly assigned, or sublet,
will include also Tenant's assignees or sub-Tenants, as to the Premises covered
by such assignment or sub-lease. "Landlord" and "Tenant" include male and
female, singular and plural, corporation, partnership or individual, as may fit
the particular parties.
33. Entire Agreement. This Lease contains the entire agreement of the
parties hereto, and no representations, inducements, promises or agreements,
oral or otherwise, between the parties, not embodied herein, will be of any
force or effect.
34. Severability and Governing Law. If any term, covenant or condition of
this Lease or the application thereof to any person, entity or circumstance
will, to any extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term, covenant, or condition to persons, entities or
circumstances other than those which or to which sued may be held invalid or
unenforceable, will not be affected thereby, and each term, covenant or
condition of this Lease will be valid and enforceable to the fullest extent
permitted by law. This Lease shall be governed by and construed in accordance
with the law of the state in which the Premises are located.
35. Brokerage. Each of Landlord and Tenant warrants to the other that no
commissions are payable or due to any broker or finder in connection with this
Lease and each of Landlord and Tenant agrees to indemnify, defend and hold the
other harmless from and against any commissions or fees or claims for
commissions or fees arising under the indemnifying party, which indemnification
will expressly survive the termination of this Lease.
[SIGNATURES ATTACHED ON FOLLOWING PAGES]
10
IN WITNESS WHEREOF, the parties herein have executed this Lease on the day and
year first above written.
"LANDLORD"
Witnesses: STANWOOD LIMITED PARTNERSHIP,
a Georgia limited partnership
/s/ Jeff LeGrand By: /s/ Michael Stanwood
- --------------------------------- -----------------------------------
Stanwood Limited Partnership
Printed: Jeff LeGrand Printed: Michael Stanwood
------------------------ ------------------------------
Title: President
--------------------------------
/s/ Sherry Berkley
- ---------------------------------
Printed: Sherry Berkley
-------------------------
"TENANT"
HUGHES SUPPLY, INC., a Florida
corporation
/s/ Laurie L. Bergstresser By: /s/ Mark D. Scicneca
- --------------------------------- -----------------------------------
Printed: Laurie L. Bergstresser Printed: Mark D. Scicneca
------------------------ ------------------------------
Title: Secretary
--------------------------------
/s/ Sharonda N. Alicea
- ---------------------------------
Printed: Sharonda N. Alicea
-------------------------
11
EXHIBIT "A"
(Legal Description of Property)
EXHIBIT A
Legal Description of Property
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 24 of the 16th
District of DeKalb County, Georgia, and being more particularly described as
follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at a point formed by the
intersection of the eastern right-of-way line of Lithonia Way (having a 60-foot
right-of-way width) and the southern right-of-way line of Snapfinger Woods Drive
(having a variable right-of-way width), said point also being the northwestern
corner of property now or formerly owned by John W. Rooker; thence leaving the
eastern right-of-way line of Lithonia Way run along the southern right-of-way
line of Snapfinger Woods Drive the following six (6) courses and distances and
following the curvature thereof; (1) North 89(degree) 55(degree) 02" East a
distance of 160.00 feet to a point;(2) North 88(degree) 20'30" East a distance
of 123.51 feet to a point; (3) North 86(degree) 58' 20" East a distance of
189.82 feet to a point: (4) North 88(degree) 43' 00" East a distance of 200.00
feet to a point; (5) along the arc of a 2,161.68-foot radius curve to the right
having an arc distance of 221.80 feet to a point located at the northeastern
corner of property now or formerly owned by John W. Rooker and the northwestern
corner of property now or formerly owned by Thomas G. Hill (said arc being
subtended by a chord lying to the south thereof bearing South 88' 20' 38" East
and being 221.70 feet in length); and (6) South 85(degree) 37' 42" East a
distance of 93.22 feet to a point located on the southwestern right-of-way line
of Miller Road (having a 70-foot right-of-way width); thence leaving the
southern right-of-way line of Snapfinger Woods Drive run along the southwestern
right-of-way line of Miller Road run the following three (3) courses and
distances; (1) South 71(degree) 51' 17" East a distance of 36.13 feet to a
point; (2) South 68(degree) 15' 59" East a distance of 62.42 feet to a point;
and (3) South 62(degree) 17' 07" East a distance of 18.96 feet to an one-half
(1/2) inch rebar set, said rebar set being the TRUE POINT OF BEGINNING; from the
TRUE POINT OF BEGINNING, as thus established, thence continue along the
southwestern right-of-way line of Miller Road run the following five (5) courses
and distances and following the curvature thereof; (1) South 62(degree) 71' 07"
East a distance of 29.64 feet to a point; (2) along the arc of a 464.77-foot
radius curve to the right having an arc distance of 133.38 feet to a point (said
arc being subtended by a chord lying to the southwest thereof bearing South
54(degree) 03' 49" East and being 132.92 feet in length); (3) along the arc of a
639.07-foot radius curve to the right having an arc distance of 228.21 feet to a
point (said arc being subtended by a chord lying to the southwest thereof
bearing South 32(degree) 55' 20" East and being 285.78 feet in length); (4)
South 20(degree) 00' 09" East a distance of 64.02 feet to a point; and (5) South
17(degree) 34' 22" East a distance of 220.85 feet to an one-half (1/2) inch
rebar set located at the northeastern corner of property now or formerly owned
by Bessemer Properties, Incorporated; thence leaving the southwestern
right-of-way line of Miller Road run along the northern boundary line of
property now or formerly owned by Bessemer Properties, Incorporated South
79(degree) 44' 00 '1 West a distance of 497.84 feet to an one-half (1/2) inch
rebar set located on the eastern boundary line of property now or formerly owned
by National Service Industries; thence leaving the northern boundary line of
property now or formerly owned by Bessemer Properties, Incorporated run along
the eastern boundary line of property now or formerly owned by National Service
Industries North 12(degree) 37' 55" West a distance of 326.59 feet to an
one-half (1/2) inch rebar set located at the southeastern corner of property now
or formerly owned by John W. Rooker and the northeastern corner of property now
or formerly owned by National Service Industries; thence leaving the
northeastern corner of property now or formerly owned by National Service
Industries run along the eastern boundary of property now or formerly owned by
John W. Rooker North 02(degree) 41' 38" West a distance of 278.41 feet to an
one-half (1/2) inch rebar set located at the southwestern corner of property now
or formerly owned by Thomas G. Hill; thence leaving the eastern boundary line of
property now or formerly owned by John W. Rooker, run along the southwestern,
southern, southeastern and eastern boundary line of property now or formerly
owned by Thomas G. Hill the following five (5) courses and distances: (1) South
63(degree) 55' 54" East a distance of 39.37 feet to an one-half (1/2) inch rebar
set; (2) South 71(degree) 41' 32" East a distance of 32.26 feet to an one-half
(1/2) inch rebar set; (3) South 75(degree) 54' 23" East a distance of 27.70 feet
to an one-half (1/2) inch rebar set; (4) North 82(degree) 37' 22" East a
distance of 67.91 feet to an one-half (1/2) inch rebar set; (5) North 16(degree)
54' 27" East a distance of 125.20 feet to a point located on the southwestern
right-of-way line of Miller Road, said point being the TRUE POINT OF BEGINNING.
The above-described property contains 5.9788 acres (260,435 square feet) and is
shown on, and described according to, that certain survey prepared for Desert
Sierra Properties, Inc. by Loo-Turley & Associates, P.C. (Richard Loo, Georgia
Registered Land Surveyor No. 2129), dated April 13, 1993, which survey is
incorporated herein by this reference and made a part of this description.
12
EXHIBIT "B"
(TAX BILLS)
RESSLEY'S
REAL ESTATE TAX SERVICE LL 24 DIST 16 LOT [ILLEGIBLE]
P.O. BOX 2297, PEACHTREE CITY, GA 30269 ------ ----- ----- ---
PHONE: 770-487-4376 FAX: 770-487-0793
S/D COUNTY Dekalb
----------------
DATE EXAMINED 6-3-03
----------------- CAPTION 2751 MILLER RD
[ILLEGIBLE] MAP REF. 16-024-01-013
------------------- ------------------------------
[ILLEGIBLE]
-------------------
=====================================================================================================
CHAIN OF TITLES | VERIFY TAX DESCRIPTION TO YOUR LEGAL
- ----------------------------------------------- DESCRIPTION
[ILLEGIBLE] 7711-767 |
- -----------------------------------------------
Desert Sierra Prop. |
- ----------------------------------------------- 5.97 AC
|
- -----------------------------------------------
|
- -----------------------------------------------
NO LIABILITY FOR FIFA TRANSFERS |
- -----------------------------------------------
ALL FIFA'S SUBJECT TO BE SOLD AT ANY TIME |
- -----------------------------------------------
PAYOFF GOOD THRU
=====================================================================================================
YEAR CITY TAXES | STATE AND COUNTY TAXES
- -----------------------------------------------------------------------------------------------------
|
1996 -----------------------------------------------------------------------------------------------
|
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|
1997 -----------------------------------------------------------------------------------------------
|
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|
1998 -----------------------------------------------------------------------------------------------
|
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|
1999 -----------------------------------------------------------------------------------------------
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2000 -----------------------------------------------------------------------------------------------
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2001 -----------------------------------------------------------------------------------------------
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Base = | Base =
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Exempt | Exempt n/a
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Assessment | Assessment 649160
2002 -----------------------------------------------------------------------------------------------
City of Atlanta Sanitary Tax Not Checked | Bill #
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To Pay | To Pay
-----------------------------------------------------------------------------------------------
Date Paid | Date Paid 12/24
- -----------------------------------------------------------------------------------------------------
Amount Paid Amount Paid 25158.36
- -----------------------------------------------------------------------------------------------------
STREET IMPROVEMENTS CITY OF ATLANTA WATER BILL NOT CHECKED
- -----------------------------------------------------------------------------------------------------
County Sanitary Tax Bill No. 1012651600 Call for Payoff
-------------------------------------------------------------------------
County Water Bill No. 209324411 PD THRU 5-9-03
---------------------------------------------------------------------------------
Property Information Results
[LOGO] Print Print this page for your records [IMAGE]
- --------------------------------
Property Tax Information Results [IMAGE] Secure
- -------------------------------- with [ILLEGIBLE]
For additional assistance, contact (404) 298-4000.
=============================================================================================
Property Identification Property Value/
Billing Assessment
Parcel ID Number 16 024 01 013
Pin Number 3553799 Taxable Year 2003
Property Address 2751 MILLER RD UNI Land Value $364,000
Property Type Real Estate Building Value $1,536,200
Tax District 04 Unincorporated Misc. Improvement
Value $68,600
Owner Information
Personal Property Value $0
Owner DESERT SIERRA PROPERTIES INC. Total Value $1,968,800
Co-Owner 40% Taxable $787,520
Assessment
Owner Address 015853 OLDEN ST
SYLMAR, CA 91342
Special Billing No Special Billing Address Homestead Exemption
Address Information available
Property Deed/ Exemption Type
Plat/Description Value Exemption Amount $0.00
Deed Type Limited Warranty Deed
Deed Book/Page 07711/0767 Other Exemption Information
Plat Book/Page /
29 X 133 X 288 X 64 X 220 X Exemption Type
Description 1 497 X 326....5.97AC 7-16-93 Value Exemption Amount $0.00
Description 2
Description 3 Tax Information Summary
Property Characteristics/ Taxable Year 2002
Sales Information Millage Rate 0.03781
NBHD Code 9038 A 5% penalty will be assessed
Acreage [ILLEGIBLE] on any unpaid balance
Zoning Type Office Institution after 11/15/2002
Zoning District 01 2nd Installment Amount $0.00
Property Class 13 Total Taxes Billed View Details $25,158.36
Year Built Total Taxes Paid $25,158.36
Air Conditioning N Total Taxes Due $0.00
Fireplaces O Escrow Agency None
Stories 1
Square Footage 49,950 Dilinquent Taxes/
Bedrooms 0 Tax Sale Information
Bathrooms 4-Fixtures Baths: 0
3-Fixtures Baths: 0 Tax Sale File Number
2-Fixtures Baths: 0 FiFa-GED Book/Page
Extra Fixtures: 0 Levy Date
Last Sold Date 06/10/1993 Sale Date
Last Sold Price Delinquent Amount Due
$418,500.00
Appeal Status
Appeal Code
Change Notice Date 04/12/2003
Hearing Date
=============================================================================================
For Additional assistance, contact (404) 298-4000
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